[Cite as State v. Cooper, 2022-Ohio-4167.]

COURT OF APPEALS

COSHOCTON COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsK'MARR M. COOPER

Defendant-Appellant

JUDGES:

Hon. William B. Hoffman, P.J.

Hon. John W. Wise, J.

Hon. Craig R. Baldwin, J. 

Case No. 2021 CA 0024

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2020 CR 0096

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 22, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON W. GIVEN GEORGE URBAN

PROSECUTING ATTORNEY 116 Cleveland Avenue, NW

BENJAMIN E. HALL Suite 808

ASSISTANT PROSECUTOR Canton, Ohio 44702

318 Chestnut Street

Coshocton, Ohio 43812
Coshocton County, Case No. 2021 CA 0024 2

Wise, J.

{¶1} Appellant K’Marr Cooper appeals his conviction and sentence by the 

Coshocton County Court of Common Pleas. Appellee is State of Ohio. The relevant facts 

leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 21, 2020, Appellant was indicted on one count of Felonious 

Assault in violation of R.C. §2903.11(A)(1) and (D)(1) and one count of Kidnapping in 

violation of R.C. §2905.01(A)(3) and (C)(1).

{¶3} Appellant was tried by a jury on August 24, 2021. 

{¶4} At trial, Deputy Landis testified officers were dispatched on July 26, 2020, 

for a break-in and assault in response to a 9-1-1 call by C.C. at 3:00 a.m. Landis arrived 

on scene at about 3:30 a.m. Once on scene, Landis said C.C.’s injuries made it difficult 

to understand her. C.C. was living at the residence with Appellant and four children. One 

relative of the children was also present. 

{¶5} Upon arrival, Deputy Landis observed C.C. to be severely injured. She was 

laying down on a couch on the back porch. Her face was swollen with dried blood on it. 

C.C. believed there were five children at the house when Deputy Landis arrived, but there 

were only two located by officers. Landis learned Appellant fled the scene with the other 

three children. The EMS then transported C.C. via Med-Flight to the trauma center. 

{¶6} Deputy Landis was then advised that C.C.’s mother had the three missing 

children. They were dropped off at approximately 4:10 a.m. It is approximately a tenminute drive from C.C.’s residence to her mother’s residence, which left at least thirty 

minutes unaccounted for when Appellant had the children.
Coshocton County, Case No. 2021 CA 0024 3

{¶7} Next, C.C. testified that she had four children and one relative of the children 

staying at the residence. In the days leading up to the incident, Appellant and C.C. had 

been fighting, Appellant was constantly on edge and angry and accused C.C. of infidelity, 

drug use, and prostitution. Earlier that evening, Appellant, C.C., and the children had 

dinner at a park. After dinner, they returned to C.C.’s residence. At the residence 

Appellant told C.C. they need to talk and tried to get her to go to the bedroom. C.C. did 

not want to go to the bedroom out of fear, and insisted on going outside to smoke. 

Appellant followed her out. Outside, Appellant threw C.C. to the ground, got on top of her, 

and shoved a picture on his phone in her face. C.C. denied knowing the man in the 

picture, so Appellant slapped her in the face and hit her. Appellant told C.C. to go inside 

to the bedroom so her kids do not find her body outside.

{¶8} Appellant then guided her by the arm to the bedroom. Once in the bedroom, 

Appellant shut the door and slammed her on the bed by her throat. Appellant got on top 

of C.C. and kept hitting, choking, and slapping her asking her questions about a man she 

did not know. Appellant threatened to kill C.C. if she got off the bed. 

{¶9} Appellant allowed her to use the bathroom but insisted the door stay open 

so he could monitor her. Appellant walked her past the living room where the children 

were to the bathroom. C.C. could not tell if the children were asleep or awake. C.C. then 

grabbed a hammer to defend herself, but Appellant sent her flying backward into the 

kitchen then repeatedly hit her.

{¶10} C.C. next remembers waking up in the bed and seeing nothing but red on 

her hands. C.C. told Appellant to call 911 because she felt like she was dying. She 
Coshocton County, Case No. 2021 CA 0024 4

promised only to say what he wanted her to say. Appellant told her to say someone broke 

into the house.

{¶11} C.C. blacked out again and when she came to, the room was dark and the 

door was closed. C.C. had to crawl to a different bedroom to use a phone to call 911. She 

said on the 911 call she did not say what Appellant did because she did not know if he 

was still in the house or not. 

{¶12} C.C. testified Captain Bryant was the first officer she spoke with after 

leaving the scene. At this point, she told Bryant, Appellant had assaulted her. C.C. had a 

concussion, swelling, and bruising from the assault. She had to undergo speech therapy, 

physical therapy, and concussion therapy.

{¶13} A.K., C.C.’s mother testified she was awakened at 4:01 a.m. by pounding 

at her door. It was her grandkids who entered her home talking over each other, and no 

adult was accompanying them. One child said, James King had a gun at C.C.’s home. 

The children then told her that Appellant had dropped them off.

{¶14} When A.K. tried to head to the crime scene, Appellant approached the car 

and yelled that James King did everything.

{¶15} James King testified he has known Appellant for about ten years. On July 

24, 2020, Mr. King met Appellant at a park. Appellant accused Mr. King of having a 

relationship with C.C., and the conversation got heated. After Appellant calmed down, the 

two parted. 

{¶16} On the evening of the incident, Appellant texted Mr. King attempting to get 

him to come over to C.C.’s house. Mr. King refused. The texts continued until 2:00 a.m. 

on July 26, 2020. Mr. King then denied having any type of relationship with C.C.
Coshocton County, Case No. 2021 CA 0024 5

{¶17} In July of 2021, Mr. King received a letter from Appellant apologizing for 

blaming Mr. King for the attack. In the letter Appellant admitted to striking C.C.

{¶18} Captain Bryant then testified he arrived at the residence at 4:00 a.m. He 

entered the residence, and photographed the scene. He observed a table covered in 

Chinese food in front of the doorway to the basement. There was significant blood in 

C.C.’s bed on the sheets, bedspread, mattress, and pillows. He noted blood between the 

kitchen and living room. The physical evidence corroborated C.C.’s statement of events.

{¶19} Appellant was arrested the following day, July 27, 2020. He claimed 

someone else came through the basement, which was blocked by the table and Chinese 

food, and then assaulted C.C. Appellant then changed his story saying it was selfdefense. Appellant eventually admitted to Captain Bryant he punched C.C. and choked 

her out because he thought she was cheating on him. Appellant also said Mr. King was 

waiting at the house to kill him, and “that he could feel it in his spirit.” Appellant admitted

to driving around with the children while C.C. was on the floor bleeding. Appellant’s story 

kept changing from Mr. King did this, to an unidentified black male did this, to self-defense, 

to C.C. was in on a conspiracy to harm Appellant.

{¶20} Finally, N.C., one of the children, testified that Appellant shoved C.C. into 

the garage, then N.C. heard banging and shouting in C.C.’s bedroom. 

{¶21} Appellant was found guilty of Counts 1 and 2. 

{¶22} Appellant was sentenced to a term of seven to ten and a half years for 

Felonious Assault and ten to fifteen years for Kidnapping to be served consecutively.
Coshocton County, Case No. 2021 CA 0024 6

ASSIGNMENT OF ERROR

{¶23} Appellant filed a timely notice of appeal. He herein raises the following three 

Assignments of Error:

{¶24} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO 

SUSTAIN A CONVICTION AGAINST THE APPELLANT AND THE VERDICT WAS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY VIOLATED [sic] 

APPELLANT’S GUARANTEES OF DUE PROCESS PURSUANT TO THE 

FOURTEENTH AMENDMENT OF THE US CONSTITUTION AND ARTICLE ONE, 

SECTION TEN OF THE OHIO CONSTITUTION, AND THE CONVICTION MUST BE 

REVERSED.

{¶25} “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF 

COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE 

OHIO CONSTITUTION.

{¶26} “III. THE APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS 

OF LAW AS GUARANTEED BY THE U.S. AND OHIO STATE CONSTITUTIONS WAS 

VIOLATED WHEN THE TRIAL COURT IMPOSED AN INDEFINITE SENTENCE 

PURSUANT TO THE REGAN TOKES ACT, THAT DOES NOT ALLOW FOR JUDICIAL 

DECISION MAKING AT THE TIME OF THE SENTENCE AND AT TIMES IN THE 

FUTURE.”
Coshocton County, Case No. 2021 CA 0024 7

I.

{¶27} In Appellant’s first Assignment of Error, Appellant argues his conviction is 

against the manifest weight of the evidence and is not supported by sufficient evidence. 

We disagree.

{¶28} Sufficiency of the evidence and manifest weight of the evidence are 

separate and distinct legal standards. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio52, 678 N.E.2d 541. Essentially, sufficiency is a test of adequacy. Id. A sufficiency of the 

evidence standard requires the appellate court to examine the evidence admitted at trial, 

in the light most favorable to the prosecution, to determine whether such evidence, if 

believed, would convince the average mind of the defendant’s guilt beyond a reasonable 

doubt. State v. Jenks, 61 Ohio St.3d 259.

{¶29} In contrast to the sufficiency of the evidence analysis, when reviewing a 

weight of the evidence argument, the appellate court reviews the entire record, weighing 

the evidence and all reasonable inferences, considers the credibility of witnesses and 

determines whether in resolving conflicts of evidence, the jury clearly lost its way and 

created such a manifest miscarriage of justice that the conviction must be reversed and 

a new trial ordered. Thompkins at 387.

{¶30} R.C. §2903.11, in pertinent part, states:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another[.]

...
Coshocton County, Case No. 2021 CA 0024 8

(D)(1)(a) Whoever violates this section is guilty of felonious assault. Except 

as otherwise provided in this division or division (D)(1)(b) of this section, felonious 

assault is a felony of the second degree.

{¶31} R.C. §2905.01, in pertinent part states:

(A) No person, by force, threat, or deception, or, in the case of a victim 

under the age of thirteen or mentally incompetent, by any means shall remove 

another from the place where the other person is found or restrain the liberty of the 

other person, for any of the following purposes:

(3) To terrorize, or to inflict serious physical harm on the victim or another[.]

(C)(1) Whoever violates this section is guilty of kidnapping. Expect as 

otherwise provided in this division or division (C)(2) or (3) of this section, 

kidnapping is a felony of the first degree.

{¶32} At trial, the victim testified Appellant threw her to the ground outside, 

grabbed her by the arm, and then escorted her to her bedroom. In the bedroom Appellant 

closed the door, slammed the victim to the bed by her throat, climbed on top of her and 

choked, slapped and hit her repeatedly. He allowed her to use the restroom supervised, 

then continued his abuse. Captain Bryant testified that the physical evidence found at 

C.C.’s residence corroborated her version of events.

{¶33} Appellant argues that eye witness testimony and photographs corroborating 

the event are insufficient as a matter of law to sustain the conviction. However, it is well 

established that the weight of the evidence and the credibility of the witnesses are 

determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio2126, 767 N.E.2d 216. The jury as the trier of fact was free to accept or reject any and all 
Coshocton County, Case No. 2021 CA 0024 9

of the evidence offered by the parties and assess the witness’s credibility. State v. Nivens, 

10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).

{¶34} We find the State presented sufficient evidence, if believed by a jury, that 

Appellant caused serious harm to the victim and by force and threat of force restrained 

the victim’s liberty. Our review of the entire record fails to persuade us that the jury lost 

its way and created a manifest miscarriage of justice. Appellant was not convicted against 

the manifest weight of the evidence.

{¶35} Appellant’s first Assignment of Error is overruled.

II.

{¶36} In Appellant’s second Assignment of Error, Appellant argues trial counsel 

was ineffective for failing to properly object to or request a limiting instruction regarding 

911 calls, did not cross-examine Mr. King and A.K., and failed to ask for a presentence 

investigation, and presented no mitigating testimony at sentencing. We disagree.

{¶37} Our standard is set forth in Strickland v. Washington (1984), 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. 

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged 

analysis in reviewing a claim for ineffective assistance of counsel. Id. First, we must 

determine whether counsel’s assistance was ineffective; whether counsel’s performance 

fell below an objective standard of reasonable representation and was violative of any of 

his essential duties to the client. Id. If we find ineffective assistance of counsel, we must 

then determine whether the defense was actually prejudiced by counsel’s ineffectiveness 

such that the reliability of the outcome of the trial is suspect. Id. This requires a showing 
Coshocton County, Case No. 2021 CA 0024 10

there is a reasonable probability that, but for counsel’s unprofessional error, the outcome 

of the trial would have been different. Id.

{¶38} Trial counsel is entitled to a strong presumption that all decisions fall within 

the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 

675, 693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio 

Supreme Court have held a reviewing court “need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the defendant as 

a result of the alleged deficiencies. Bradley at 43, 538 N.E.2d 373, quoting Strickland at 

697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute 

ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 

(1980).

{¶39} First, Appellant argues Appellant’s trial counsel should have objected to the 

introduction of the 911 calls into evidence, or ask for a jury limiting instruction. Appellant 

makes no citation to legal authority as to the basis of the objection, why it should be 

excluded, or what type of limiting instruction should have been given failing to show 

Appellant’s trial counsel’s performance with regards to the 911 calls fell below an 

objective standard.

{¶40} Next, Appellant argues trial counsel failed to cross-examine witnesses 

James King and A.K. However, Appellant fails to show any relevant information A.K. and 

James King had which would have been disclosed by a cross-examination. Furthermore, 

“trial counsel’s decision to cross-examine a witness and the extent of such crossexamination are tactical matters.” State v. Diaz, 9th Dist. No. 04CA008573, 2005-Ohio3108, ¶26, citing State v. Flors (1987), 38 Ohio App.3d 133, 139, 528 N.E.2d 950. “As 
Coshocton County, Case No. 2021 CA 0024 11

such, decisions regarding cross-examination are within trial counsel’s discretion, and 

cannot form the basis for a claim of ineffective assistance of counsel.” Id. 

{¶41} Next, Appellant argues trial counsel failed to request a presentence 

investigation report. This is factually inaccurate. Appellant did request a presentence 

investigation report.

{¶42} Finally, Appellant argues trial counsel should have presented any mitigating 

testimony from Appellant or other witnesses. However, Appellant failed to identify if 

Appellant or any other witness had testimony to offer which could mitigate his sentence. 

{¶43} Appellant has failed to show the trial counsel’s performance fell below an 

objective standard of reasonable representation.

{¶44} Appellant’s second Assignment of Error is overruled.

III.

{¶45} In Appellant’s third Assignment of Error, Appellant challenges the 

constitutionality of the Reagan Tokes Act, specifically R.C. §2967.271, which codified 

hybrid indefinite prison terms for first- and second-degree felonies. Appellant argues that 

the Act violates the separation of powers doctrine, the constitutional right to trial by jury, 

and due process. We disagree.

{¶46} This Court has previously found this type of challenge to not yet be ripe for 

review. State v. Downard, 5th Dist. Muskingum, CT2019, 2020-Ohio-4227, appeal 

allowed, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1152. However, the Ohio 

Supreme Court found that the issue of the constitutionality of an indeterminate sentence 

imposed under R.C. §2967.271 ripens at the time of sentencing, and that the law may be 

challenged on direct appeal. State v. Maddox, 2022-Ohio-764, ¶21.
Coshocton County, Case No. 2021 CA 0024 12

{¶47} Recently, in State v. Burris, 5th Dist. Guernsey No. 21CA000021, 2022-

Ohio-1481, and State v. Ratliff, 5th Dist. Guernsey No. 21CA000016, 2022-Ohio-1372,

this Court set forth analysis regarding Appellant’s arguments.

Violation of Right to Trial by Jury

{¶48} Appellant argues that the Department of Rehabilitation and Correction 

(“DRC”) unilaterally conducts fact finding which may extend an inmate’s sentence, and 

that this violates Appellant’s right to trial by jury citing Apprendi v. New Jersey, 530 U.S. 

466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We disagree.

{¶49} In Apprendi, a jury convicted the defendant of a gun crime that carried a 

maximum prison sentence of 10 years. Id. However, a judge imposed a longer sentence 

pursuant to a statute providing him authorization. Id. The judge found, by a 

preponderance of the evidence, that the defendant had committed the crime with racial 

bias. Apprendi held this scheme unconstitutional. Id. “[A]ny fact that increases the penalty 

for a crime beyond the prescribed statutory maximum,” the Court explained, “must be 

submitted to a jury, and proved beyond a reasonable doubt” or admitted by the defendant. 

530 U. S. at 490, 120 S.Ct. 2348. A State may not avoid this restraint on judicial power 

by simply calling the process of finding new facts and imposing a new punishment a 

judicial “sentencing enhancement.” Id., at 495, 120 S.Ct. 2348. “[T]he relevant inquiry is 

one not of form, but of effect—does the required [judicial] finding expose the defendant 

to a greater punishment than that authorized by the jury's guilty verdict?” Id., at 494, 120 

S.Ct. 2348.

{¶50} In Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 

(2013), the United States Supreme Court addressed mandatory minimum sentences and 
Coshocton County, Case No. 2021 CA 0024 13

the Sixth Amendment. In Alleyne, the jury relied on victim testimony of an armed robbery 

that one of the perpetrators possessed a gun. The trial court relied on the same testimony 

to determine that either Alleyne or his accomplice brandished a gun. The testimony was 

the same, but the findings were different. The jury found that Alleyne possessed a gun, 

but made no finding with regard to whether Alleyne brandished a gun. The court, however 

determined that the gun was brandished. The Supreme Court reviewed the statutory 

punishment structure, which included a mandatory minimum sentence of five years if a 

crime of violence was committed while the offender carried a firearm, seven years if the 

firearm was brandished, and ten years if the firearm was discharged during the crime. 18 

U.S.C. 924(c)(1)(A). The crime was otherwise punishable by a term of imprisonment not 

exceeding 20 years. 18 U.S.C.1951 (a). The Court held that where facts were not found 

by a jury that enhanced the mandatory minimum penalty for a crime, the Sixth 

Amendment was violated. Specifically, “[b]ecause mandatory minimum sentences 

increase the penalty for a crime, any fact that increases the mandatory minimum is an 

‘element’ that must be submitted to the jury.” Alleyne at 103. See, State v. Fort, 8th Dist. 

Cuyahoga No. 100346, 17 N.E.3d 1172, 2014-Ohio-3412, ¶29. However, the majority in 

Alleyne was held: 

In holding that facts that increase mandatory minimum sentences 

must be submitted to the jury, we take care to note what our holding does 

not entail. Our ruling today does not mean that any fact that influences 

judicial discretion must be found by a jury. We have long recognized that 

broad sentencing discretion, informed by judicial fact-finding, does not 

violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S. 
Coshocton County, Case No. 2021 CA 0024 14

817, ––––, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (“[W]ithin 

established limits [,] ... the exercise of [sentencing] discretion does not 

contravene the Sixth Amendment even if it is informed by judge-found facts” 

(emphasis deleted and internal quotation marks omitted)); Apprendi, 530 

U.S. at 481, 120 S.Ct. 2348 (“[N]othing in this history suggests that it is 

impermissible for judges to exercise discretion—taking into consideration 

various factors relating both to offense and offender—in imposing a 

judgment within the range prescribed by statute”). 

Alleyne, 570 U.S. at 116. See also, State v. Salim, 5th Dist. Guernsey 

No. 13 CA 28, 2014-Ohio-357, ¶19.

{¶51} Under the Reagan Tokes Act the judge imposes both a minimum and a 

maximum sentence. No judicial fact finding is required. In Ohio, “trial courts have full 

discretion to impose a prison sentence within the statutory range and are no longer 

required to make findings or give their reasons for imposing maximum, consecutive, or 

more than the minimum sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 

896 N.E.2d 124. The Reagan Tokes Act does not permit the Department of Rehabilitation 

and Correction (“DRC”) to extend a sentence beyond the maximum sentence imposed by 

the trial court. Burris at ¶86. “Further, the facts which postpone an inmate’s release date 

are facts found as a result of prison disciplinary proceedings, not the underlying crime.” 

Id.

Violation of Separate Powers

{¶52} “The Ohio Supreme Court has made it clear that when the power to sanction 

is delegated to the executive branch, a separation-of-powers problem is avoided if the 
Coshocton County, Case No. 2021 CA 0024 15

sanction is originally imposed by a court and included in its sentence.” Burris at ¶78, citing 

Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶18-20 citing 

State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶19. This is the 

scheme established by the Reagan Tokes Law. State v. Ferguson, 2nd Dist. Montgomery 

No. 28644, 2020-Ohio-4153, ¶23. The statute does not permit DRC to act outside of the 

maximum prison term imposed by the court. Id. Accordingly, the Reagan Tokes Act does 

not violate the separation of powers doctrine.

Violation of Due Process

{¶53} Procedural requirements are minimal in the context of parole. Burris at ¶59. 

“[P]rison disciplinary proceedings are not part of a criminal prosecution, and the full 

panoply of rights due a defendant in such proceedings does not apply. Wolff v. McDonnell, 

418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (citations omitted). Courts have 

found the following procedures should be accorded to prisoners in a disciplinary 

proceeding: 

1). a prisoner is entitled to a review unaffected by “arbitrary” decision 

making. Wolff, 418 U.S. at 557-558, 94 S.Ct. 2963; (See, Ohio Admin. Code 

5120-9-08). 2). Advance written notice of the claimed violation. Wolff, 418 

U.S. at 563, 94 S.Ct. 2963. (See, Ohio Adm. Code 5120:1-8-12). 3). A 

written statement of the fact finders as to the evidence relied upon and the 

reasons for the disciplinary action taken. Wolff, 418 U.S. at 563, 94 S.Ct. 

2963. (See, Ohio Adm. Code 5120-9-08(M); Ohio Adm. Code 5120: 1-

11(G)(1)). 4). Prison official must have necessary discretion to keep the 

hearing within reasonable limits and to refuse to call witnesses that may 
Coshocton County, Case No. 2021 CA 0024 16

create a risk of reprisal or undermine authority, as well as to limit access to 

other inmates to collect statements or to compile other documentary 

evidence. Wolff, 418 U.S. at 566, 94 S.Ct. 2963 (See, Ohio Adm. Code 

5120-0-08(E) (3); Ohio Adm. Code 5120-9-08(F)). 5). “Where an illiterate 

inmate will be able to collect and present the evidence necessary for an 

adequate comprehension of the case, he should be free to seek the aid of 

a fellow inmate, or if that is forbidden, to have adequate substitute aid in the 

form of help from the staff or from a sufficiently competent inmate 

designated by the staff.” Wolff, 418 U.S. at 570, 94 S.Ct. 2963. (See, Ohio 

Adm. Code 5120-9-07(H)(1)).

Burris at ¶55

{¶54} In the case sub judice, the DRC must conduct a hearing to rebut the 

presumptive release date. Id. at ¶66. According to R.C. §2967.271(C) the DRC must 

determine the applicability of the following factors:

(1) Regardless of the security level in which the offender is 

classified at the time of the hearing, both of the following apply:

(a) During the offender’s incarceration, the offender committed 

institutional rule infractions that involved compromising the security of a 

state correctional institution, compromising the safety of the staff of a state 

correctional institution or its inmates, or physical harm or the threat of 

physical harm to the staff of a state correctional institution or its inmates, or 

committed a violation of law that was not prosecuted, and the infractions or 

violations demonstrate that the offender has not been rehabilitated.
Coshocton County, Case No. 2021 CA 0024 17

(b) The offender’s behavior while incarcerated, including, but not 

limited to the infractions and violations specified in division (C)(1)(a) of this 

section, demonstrate that the offender continues to pose a threat to society.

(2) Regardless of the security level in which the offender is 

classified at the time of the hearing, the offender has been placed by the 

department in extended restrictive housing at any time within the year 

preceding the date of the hearing.

(3) At the time of the hearing, the offender is classified by the 

department as a security level three, four, or five, or at a higher security 

level.

{¶55} The Reagan Tokes Act requires DRC to provide notice of the hearing. R.C. 

§2967.271(E). The Ohio Administrative code sets forth inmate rules of conduct, 

disciplinary procedures for violations of the rules, under what circumstances an inmate is 

transferred to restrictive housing, and procedure for release consideration hearings. Ohio 

Adm. Code 5120-9-06; Ohio Adm. Code 5120-9-08; Ohio Adm. Code 5120-9-10; Ohio 

Adm. Code 5120: 1-1-11. Therefore, the DRC gives the inmate notice in advance of 

behavior which may contribute or result to extending their sentence.

{¶56} The Reagan Tokes Act provides the inmate an opportunity to be heard. The 

DRC “shall provide notices of hearings to be conducted under division (C) or (D) of this 

section in the same manner, and to the same persons, as specified in section 2967.12 

and Chapter 2930 of the Revised Code with respect to hearings to be conducted 

regarding the possible release on parole of an inmate.” R.C. §2967.271(E).
Coshocton County, Case No. 2021 CA 0024 18

{¶57} Therefore, we find the Reagan Tokes Act does not violate Appellant’s right 

to due process.

{¶58} Appellant’s third Assignment of Error is overruled.

{¶59} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Coshocton County, Ohio, is hereby affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

JWW/br 1118